In contemplating the relation of freedom and identity, the Latin maxim libertas non datur sine veritate aptly reminds us that there can be no freedom without truth. While certain aspects of who we are, such as nationality or ethnic ancestry, may be cul? turally or serendipitously determined, there is a truth to hu? man nature which, if not observed, corrupts or destroys life and any exercise of freedom dependent upon it.
Human nature and the natural law it reflects are inescapable, and, insofar as the Constitution of the United States was consciously fashioned with an outline of human nature in mind, natural law is an in? dispensable aid to proper constitutional interpretation. This essay explores the founding conception of liberty and its interrelationship with human nature. It then addresses how the Constitution reflects these aspects of human nature.
Finally, it contains some concluding perspectives on aspects of human nature understated in the constitutional design and what ought to be done when there are disputing conceptions of human na? ture. I. LIBERTY The founding view of liberty was taken up directly by Ham? ilton.
In Federalist 15, Hamilton asks “why,” if man1 is naturally * Caruso Family Chair and Professor of Constitutional Law, Pepperdine Uni? versity; Dean and St. Thomas More Professor, The Catholic University of America Columbus School of Law, 2001–2003; Professor and Director of the Center on Law & Government at the University of Notre Dame, 1980–1999; Assistant Attorney General and Head of the Office of Legal Counsel, Department of Justice, 1985– 1989. 1.
The use of the masculine in this essay is intended to include the feminine; the masculine usage is continued in the essay so as not to raise in the mind of the reader any inference that the thoughts expressed are somehow at odds with the quoted material from the founding period, which reflected a different custom in 34 Harvard Journal of Law & Public Policy [Vol. 29 free,2 “has government been instituted at all? ”3 Hamilton’s an? swer is blunt and rests squarely on a claim about human na? ture.
Government is instituted, Hamilton asserts, “[b]ecause the passions of men will not conform to the dictates of reason and justice without constraint. ”4 Liberty without restraint will not lead to private or public good. How does Hamilton know this? Well, he says, just look around; and further, if the evidence of our own eyes does not convince us and we seek something beyond this empirical claim, he urges us to draw yet another inference about human nature:
It is to be expected that men in a collective or group will act badly because the “[r]egard to reputation has a less ac? tive influence. ”5 Think about it, Hamilton admonishes: Liberty will be badly used if joining together obscures accountability. Moreover, “a spirit of faction” will aggravate these intrinsic human aspects, thereby magnifying the resulting harms. 6 In a group, we will ally with others of like mind in a shameless way to disadvantage or harm others. We will be inclined to use our liberty to pursue “improprieties and excesses, for which [we] would blush in a private capacity.
”7 The desire for liberty to be well used, once “we the people” were united in political society, greatly motivated the Foun? ders. It will be argued below that this founding conception of liberty informed by human nature accounts for much of the constitutional structure and the express limitations upon gov? ernment power within and appended to it. The justification for the new Constitution is forthrightly anchored in the mainte? nance of human nature as the “great principle of self? preservation.
”8 As such, the precondition for liberty to be used well is honoring the core principle of preserving the truth of oneself—a proposition traceable, as Federalist 43 expressly af? using the masculine pronoun alone, but which this author believes is applicable to all persons without gender distinction. 2. Note that any other presupposition is counterfactual, except to extreme be? haviorists. See, e. g. , Thomas Szasz, Against Behaviorism:
A Review of B. F. Skinner’s About Behaviorism, 5 PSYCHOL. NOTES (1991), available at http://www.libertarian. co. uk/lapubs/psycn/psycn005. pdf. 3. THE FEDERALIST NO. 15, at 110 (Alexander Hamilton) (Clinton Rossiter ed. , 1961). 4. Id. 5. Id. at 111. 6. Id. 7. Id. 8. THE FEDERALIST NO. 43 (James Madison), supra note 3, at 279. No. 1] The Human Nature of Freedom and Identity 35 firms, to “the transcendent law of Nature and of Nature’s God” upon which the nation is founded and all human action de? pends.
9 The question whether identity is a limitation or starting point for freedom may be a puzzler for twenty?first century man, but it is an easier question when tossed the way of Pub? lius. The authors of The Federalist Papers knew human nature or identity to be the starting point for human freedom or liberty. II. HUMAN NATURE What is the law of nature? An early twentieth century lec? turer put matters nicely: Every living creature is the embodiment of some form of natural law. Its duration of life depends upon its obedience to the law of its nature, as embodied in its organism.
It lives by being itself, by persisting in being itself, and when it vio?lates the law of the kind of being it is, it renounces life and perishes . . . . All animated beings are subject to the laws of cause and effect, as Nature has prescribed them for each species . . . . [I]n any complex organization, like human soci? ety, something must be freely granted to the individual. This is what we mean politically by “liberty. ” On the other hand, something must be insisted upon for the benefit of the group. This is what we mean by “law,” in its social sense . . ..
Without liberty, there is no initiative, and hence no progress. Without law, there is no survival of the group. 10 It is within the will of man to have positive law either ad? vance human nature or undermine it. It would be a mistake, however, to suppose that the constructed, positive law of soci? ety can disregard the law of nature without consequence. We can construct governments and other social structures beyond our individual natures, but these perform well only if nature’s truths are observed.
“What we must never forget is that Nature never ceases to govern; and that, if men wish to govern, they must govern under Nature’s Laws, or they will be doomed to failure. ”11 9. Id. 10. DAVID JAYNE HILL, HUMAN NATURE IN THE CONSTITUTION 24–25 (1926). 11. Id. at 29. 36 A. Harvard Journal of Law & Public Policy [Vol. 29 Human Liberty or “Right” Derived from Assumed Duty The founding generation was studied in the dismal history of societies that sought the false freedom of governing against human nature.
If one begins the history of human government with the patriarchal clan, one sees force, but little acknowl? edgment of human liberty or freedom. 12 As the clan gave way to various forms of warrior chiefs and kingships, there was a natural mindfulness of the well? being of one’s group. Several thousand years before Christ, Hammurabi’s famous legal code would describe the clan leader as a shepherd chosen “to care for the people [and cause them] to dwell in peace and security, that the great should not oppress the weak.
”13 The Greeks would give a name to these assumed natural duties of care, and these in turn would later become encapsulated into the notion of rights or liberties. Rights, therefore, arose as correlatives from the reasoned objection of man’s intellect when leaders defaulted on their expected duty of care and irrationally de? prived man of the necessary goods or sustenance to survive. Stoic philosophers like Cicero would bring this conception of human right or liberty derived from duty to Rome, but, with Rome’s fall, barbarian kings once again obscured the concept of natural rights.
It would not re? emerge until the American Founders decided to build a government upon human nature and its associated rights. B. Affirmation of Creation as Source of Natural Right or Liberty “When . . . the Laws of Nature and of Nature’s God entitle them, [and] a decent respect to the opinions of mankind re? quires . . . .”:14 With these words, the Founders gave explana? tion not only for the formation of a new sovereignty, but also the human liberty the newly established United States sought to advance.
It was an explanation premised upon the pro? claimed truth that man is not self? creation, but created. That the handiwork of the Creator came with a conscious endow? ment of unalienable rights—life, liberty, and the pursuit of happiness—led to the conclusion that any governmental form 12. This is not to say that force within the clan was always contrary to human nature. 13.
HILL, supra note 10, at 37 (quoting Hammurabi’s legal code from approximately 2250 B. C. ). 14. THE DECLARATION OF INDEPENDENCE para. 1 (U. S. 1776). No. 1] The Human Nature of Freedom and Identity 37 that followed would need to have one overriding end: to secure human nature and the rights associated with it. There is much speculation as to why America in the late Eighteenth Century was the locus of natural law rediscovery. Possibly, it was the wide sweep of land, and nature, itself, that the colonists daily inhabited and sought to harness.
Perhaps it was the extraordinary discoveries of the era in natural science. Or it may simply have been that no people so distant from their country of origin could rationally continue to think of them? selves as “subjects. ” American colonists were persons enjoying natural liberty. However it was, “[t]he American colonists came upon this idea in their own way . . . . It was the result of their own experience in self? government, coupled with their faith that their human nature had a Divine origin and involved a moral responsibility of which freedom was a necessary corre? late.
”15 If freedom, and the new government that aspired to it, were to be guided by human nature, then that nature would need to be understood. At a very basic level, giving proper attribution to a Creator put human nature off? limits to human redefini? tion16 and secured unalienable rights against the government,17 but a workable government would require some greater identi? 15. HILL, supra note 10, at 51–52. 16. Such attempted human redefinition of truth, unfortunately, is all too common. For instance, disputes abound over what legal protection to extend to an unborn child ever since Roe v.
Wade, 410 U. S. 113 (1973), but the legal dispute has absolutely no effect on the truth of the child’s humanity. So too, any association of persons can be legally called a marriage, but such domination has no effect on the truth of what marriage is in terms of conjugal unity and procreative potential. Moreover, because legal assertions have no discernible power to redefine the natural essence of these matters, man ought not to seek to have positive law and nature work toward different ends.
Justice James Wilson, who signed both the Declaration of Independence and the Constitution, sagely counseled that “law can never attain either the extent or the elevation of a science, unless it be raised upon the science of man. ” JAMES WILSON, Man as an Individual—Abstractly Treated, in 1 THE WORKS OF JAMES WILSON 206, 207 (James DeWitt Andrews ed. , 1896). It was obvious in the 1850s that black men and women were human. Nonetheless, the law pointedly chose to treat them inhumanly. The bloody consequences of the law’s impertinence in ignoring human nature are etched in history.
17. See Thomas L. Pangle, The Philosophic Understandings of Human Nature Informing the Constitution, in CONFRONTING THE CONSTITUTION 9, 74 (Allan Bloom ed. , 1990) (“This means . . . while the majority retains supreme political power, it does not retain and never had unlimited power. The supreme (irresistible) power governing every rational person’s behavior is the desire for self? preservation and every individual retains the inalienable right to resist perceived threats to his property and existence, no matter what the source of those threats. ”). 38
Harvard Journal of Law & Public Policy [Vol. 29 fication of the particulars of human nature. A few of these par? ticulars are explored below. III. MAN IS FREE, BUT NOT APART FROM OR ABOVE, SOCIETY In the Seventeenth and Eighteenth Centuries, it was under? stood that man was not intended to live alone, but in society. Of course, part of this sociability was a product of pure neces? sity. “From his beginning [man] was born into [society], and without it he could never have been. Helpless in his isolation, he could be exterminated even by swarms of insects.
”18 But the yearning for community was more than a utilitarian means of defense against predatory animals or other threats to physical existence. The Founders read Aristotle and accepted his propo? sition that “man is by nature a political animal . . . . There is . . . a natural impulse in all men towards an association [with others]. ”19 This natural desire, according to Aristotle, arose from two sources: reasoned reflection on right and wrong (which is only a comprehensible exercise in relation to others) and our love of others. 20 A.
Jefferson: Man Has a Moral Sense Developed Out of Service to Others Thomas Jefferson most notably made reference to man’s so? cial side, observing in correspondence to John Adams that man is “an animal destined to live in society. ”21 For this reason, Jef? ferson would deliberately criticize the anti? social, atomistic conceptions of Hobbes as a “humiliation to human nature. ”22 Thomas Pangle records that Jefferson had derived from the Enlightenment philosopher Helvetius that we experience pleasure “when we aid or even when we seem to sacrifice for others.
”23 Jefferson was not fully satisfied that Helvetius had explained the origin of the pleasure derived from the service to 18. HILL, supra note 10, at 17. 19. ARISTOTLE, THE POLITICS 10–11 (Ernest Barker trans. , 1995). 20. Id. at 106. 21. Letter from Thomas Jefferson to John Adams (Oct. 14, 1816), in 2 THE ADAMS? JEFFERSON LETTERS 492 (Lester J. Cappon ed. , 1959). 22. Letter from Thomas Jefferson to Frances Gilmer (June 7, 1816), in THE WRITINGS OF THOMAS JEFFERSON 24 (Albert Ellery Bergh ed., 1905).
23. THOMAS L. PANGLE, THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN FOUNDERS AND THE PHILOSOPHY OF LOCKE 120 (1988). No. 1] The Human Nature of Freedom and Identity 39 others and was unprepared to ascribe the origin of man’s moral sense solely to God since that would leave unaccounted for the moral sense or like sensation in a disbeliever. Therefore, on a philosophical level, Jefferson would conclude that, like other aspects of the moral sense in man, nature simply reveals the pleasure of service.
24 As he grew older, Jefferson would come to value tranquility over continued public service,25 but he would continue to lean upon the theorem that the pursuit of happi? ness was dependent upon the virtue of knowing oneself and being useful to others. The “moral instinct” that inclines us to do good out of a love of others is, Jefferson would conclude, “the brightest gem with which the human character is studded, and the want of it as more degrading than the most hideous of bodily deformities. ”26 B.
Wilson: Man Has Moral Sense Because He Has an Innate Conscience James Wilson would question Jefferson’s reliance upon the pleasure or utility of serving others as a sufficiently reliable ba? sis for the development of a moral sense. Unlike Jefferson, Wil? son would insist that human nature intrinsically includes not only a desire to be social and socially useful, but also a con? science. 27 Relying upon Thomas Aquinas by way of Richard Hooker, Wilson would insist that it is conscience that guides reason.
28 The first principles of virtue are self? evident to man, and, were it otherwise, most men would find the pursuit of vir? tue to be impossible and beyond their capacity. Wilson’s attachment to innate conscience contrasts with John Locke, who, in his Essay Concerning Human Understanding, opines that not even the Golden Rule is innately known. Locke is often quoted in a way that makes his writing seem highly relativistic, and certainly the statement, “[c]onscience . . . is noth? ing else, but our own Opinion,” seems to be just that.
29 Locke was obviously a stronger influence on Jefferson than on Wil? 24. See id. 25. Pangle quotes Jefferson as advising a young James Monroe that “public service and private misery [are] inseparably linked together. ” Id. at 121. 26. Id. at 120. 27. Id. at 121–22. 28. JAMES WILSON, Of the General Principles of Law and Obligation, in SELECTED POLITICAL ESSAYS OF JAMES WILSON 215, 222–24 (Randolph G. Adams ed. , 1930). 29. JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 70 (Peter H. Nidditch ed., 1975) (1689).
40 Harvard Journal of Law & Public Policy [Vol. 29 son, as Locke’s denial of conscience as innate fits nicely with Jefferson’s proposition that men always inquire further to seek an underlying reason for a moral rule. 30 For Jefferson again, it was the utility of service that brought happiness, not following an inner voice guided by an objective, knowable virtue. Locke would similarly write that “[p]ower and riches, nay Vertue [sic] it self, are valued only as Conducing to our Happiness.
”31 C. Man’s Created Nature Bridges Jefferson and Wilson But Jefferson (and Locke) may not be as far from Wilson as it first would seem. What unifies them is reference to the tran? scendent. All three concede that acknowledgment of a Creator influences man’s moral sense. Locke makes repeated reference to man’s creation, and Jefferson’s “endowed by their Creator” reference in the Declaration is well known. Nevertheless, Jef? ferson is sometimes described as a “materialist,” a term he bor?rowed from Locke, or often as a “deist. ”
These terms obscure more than they clarify because it was Jefferson’s concession of a Creator God that had real consequence for filling out his con? ception of human nature. As Father John Hardon, S. J. , wrote in apprising the so? called Jefferson Bible, the Life and Morals of Je? sus of Nazareth: That Jefferson believed in God is evident first from his ready acceptance of the teachings of Christ on the subject, the Lord’s Prayer, the Eight Beatitudes, the Parables of the Un?just Steward and the Ten Talents, the Sermon on the Mount—all of which presuppose a belief in the existence of God, the Creator of heaven and earth.
Correlative with this goes the belief in prayer and some kind of Providence, and to that extent, at least, an acceptance of some kind of grace, requested for example in the petition, “Deliver us from evil,” in the Pater Noster. Also the Morals of Jesus allows us to conclude that Jeffer? son believed in some sort of future life, where the good are rewarded and the wicked punished.
Besides the Parables of Lazarus and Dives, of the Pharisee and Publican, and the Wedding Feast, Jefferson accepted and extracted the whole discourse of Christ about the Day of Judgment, in the twenty? fifth chapter of Matthew, not excluding the classic 30. See id. at 65. 31. John Locke, Some Thoughts Concerning Education, in THE EDUCATIONAL WRITINGS OF JOHN LOCKE 109, 249 (James Axtell ed. , 1968). No. 1] The Human Nature of Freedom and Identity 41 verse 46, in which Christ foretells:
“These will go into ever?lasting punishment, but the just into everlasting life. ”32 What, then, of Jefferson’s self? description as a materialist in the Lockean sense? Hardon writes that it was not a denial of the spirituality of the human soul, but merely the humble con? fession that there is no human proof anchored solely in reason of the soul’s spiritual nature. 33 Hardon’s explanation is persua? sive.
Even though Locke (and by extension Jefferson) was un? able to prove the imprint of a moral sense in man and questioned whether reason is naturally inclined toward seek?ing the good, as Aquinas taught, Locke nevertheless insisted on the existence of natural law, knowable only by means of the Divine creator and legislator. 34 By this, Locke meant that hu? man beings are the creation or “workmanship” of God; there? fore, they belong to God and are His property.
From this declared status as created beings, a set of prescrip? tions under the natural law can be deduced. For example, the presupposition of creation allows man to deduce moral pre? cepts in support of “unalienable rights” derived out of his rela?
tionship with a Creator? Owner and other created human beings. These moral precepts themselves then encourage habits of virtue, especially including Jefferson’s insight of service to others. Habits of virtue yield happiness. Disregard the presup? position of man as a created being, however, and think of man as his own self? creation living outside or above society, and the process would work in reverse: unhappiness resulting from practices of vice and self? interest unchecked by any moral sense derived from human nature.
Without the public ac?knowledgment of man’s created nature, the derivation of moral sense would be impossible, because there would then be no 32. Fr. John A. Hardon, S. J. , The Jefferson Bible, AM. ECCLESIASTICAL REV. , June 1954, available at http://www. catholicculture. org/docs/doc_view. cfm? recnum? 6040. 33. See id. John Locke writes, “we do not owe our origin to ourselves . . . .” JOHN LOCKE, QUESTIONS CONCERNING THE LAW OF NATURE 161 (Robert Horowitz et al. trans. , Cornell Univ. Press 1990) (1664).
Locke was sure that this is not a religious doctrine, even as such doctrines may confirm “the truth of our argument that man can, by making use of sense and reason together, arrive at knowledge of some su? preme power . . . .” Id. at 165. Locke admitted that reason may prompt some to doubt God’s existence, but he said “there exists nowhere a race so barbarous, so far removed from all humanity” that is not suited to “infer from sensible things that there exists some powerful and wise being who has jurisdiction and power over men themselves. ” Id. at 165, 167. 34.
See Michael P. Zuckert, Do Natural Rights Derive from Natural Law? , 20 HARV. J. L. & PUB. POL’Y 695, 721 (1997). 42 Harvard Journal of Law & Public Policy [Vol. 29 stable conception of human nature. Human nature would, of course, be factually constant, but insofar as it would be subject to legal redefinition by those in the possession of force, it would not yield moral clarity for public or private decision. Of course, man is not assured of happiness merely by public acknowledgment of his created nature. When man enacts laws or undertakes personal action in defiance of that created na?ture, he is acting in a way that is contrary to a state of happi? ness.
For this reason, if a government of law is to be successful, it must be formed to meet the reality of man’s nature: a reality which recognizes both man’s created nobility and rebelling imperfection. Hence, Wilson insightfully comments: [G]overnment is the scaffolding of society: and if society could be built and kept entire without government, the scaf? folding might be thrown down, without the least inconven? ience or cause of regret.
Government is, indeed, highly necessary .. . to a fallen state. Had man continued innocent, society, without the aids of government, would have shed its benign influence even over the bowers of Paradise. 35 he Founders believed man had not “continued innocent” T and so shaped American government to meet his shortcom? ings. IV. MAN’S IMPERFECT NOBILITY The seventeenth? to? eighteenth? century period out of which the Constitution emerged was, as Arthur O. Lovejoy records, a period of transition between the denigration of man and the celebration of his potential.
36 Theologians and religious writers reminded the Founders of man’s creation in the image and like? ness of God and man’s supernatural destiny, but one satire writer after another demonstrated that man, in action, failed regularly to live up to this nobility. These satires of the Seven? teenth Century were but the flowering of earlier writing. Father James Gillis writes: Shakespeare—the myriad? minded Shakespeare—probably knew man better than any other poet or dramatist or phi? losopher. Certainly he made a life study of man; he tracked 35.
JAMES WILSON, Of the Study of Law in the United States, in SELECTED POLITICAL ESSAYS OF JAMES WILSON, supra note 28, at 210. 36. See ARTHUR O. LOVEJOY, REFLECTIONS ON HUMAN NATURE 20 (1961). No. 1] The Human Nature of Freedom and Identity 43 every emotion and mood and thought and passion of man to its secret lair in the human heart, dragged it out, incarnated it in man or woman, king, peasant, soldier, student, lover, clown, clothed it in ermine or fustian or in mourner’s weeds, and made it “strut and fret its hour upon the stage. ” If ever a man revealed ourselves to ourselves, it was that all?
But? omniscient Shakespeare. But even he was compelled in the end to confess that he couldn’t solve the riddle of man. Wit? ness the famous monologue, “[w]hat a piece of work is man! ” continuing “how like an angel! ” but concluding, “this quintessence of dust! ”37 A. Man Rationalizes Himself as an Exception: The Self? Interest Problem Thirty years before the Declaration, the French writer Mar? quis de Vauvenargues noted how much we enjoy pointing out human defect, thinking we can somehow exempt ourselves from the same criticism.
Vauvenargues lamented, “We are so presumptuous that we imagine we can separate our personal interest from that of humanity in general, and malign the hu? man race without implicating ourselves. ”38 n response to this criticism, man would assert as a defense I his commitment to reason. However, one would have to cau? tiously wonder if “reason” was itself rationalization and self? deception. Man reaches a conclusion favoring passion over rea? son, then finds reasons to justify the passion and deceives him?
self into thinking the reasons discovered were the cause for the initial decision. Again, satirists of the Seventeenth Century regularly pointed out that “[t]he passions always seek to justify themselves and persuade us insensibly that we have reason for following them. The gratification and pleasure to which they give rise in the mind which should be judging them, corrupt its judgment in their favor. ”39 hese insights were best represented in the founding genera? T tion by John Adams. He observed that men tend to act first and think after.
Men have a tendency to flatter themselves, and Ad? ams thought this self? deception was responsible for many ca? 37. JAMES M. GILLIS, THIS MYSTERIOUS HUMAN NATURE 5 (1956) (quoting WILLIAM SHAKESPEARE, HAMLET act 2, sc. 2). 38. LOVEJOY, supra note 36, at 20 (citation omitted). 39. Id. at 26. 44 Harvard Journal of Law & Public Policy [Vol. 29 lamities. 40 Caught up in the various political controversies of his day, Adams wondered why those against him sought to “blacken and discredit” his motives, rather than address under? lying issues.
41 This trait of human nature has not changed. 42 B. A Government to Bring Perfection from Imperfect Human Nature Richard Hooker had faithfully recorded the noble, but imper? fect, aspects of human nature: Laws politic, ordained for external order . . . are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience unto the sacred laws of nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they do accordingly provide not?
Withstanding so to frame his outward actions, that they be no hindrance unto the common good for which societies are instituted: unless they do this, they are not perfect. 43 et all was not lost. God had created a universe by counter? Y balancing the forces of physical science, as Newton explained, and man could likewise construct a successful polity by follow? ing His model. So the Constitution came to be, following this instruction of counterpoise or balance, reflected in the planets as well as literature.
The Founders, already having declared their fidelity to “the Laws of Nature and Nature’s God,” pro? 40. See generally JOHN ADAMS, ON SELF? DELUSION, in 3 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 432, 433–36 (Charles C. Little & James Brown eds. 1851). 41. Id. at 436. 42. Why, for instance, did environmental groups seek to demonize then? Judge John Roberts as anti? environment because of his dissent in Rancho Viejo v. Norton, 334 F. 3d 1158 (D. C. Cir. 2003), rather than take up the jurisprudential difficulty that animated the Supreme Court decisions upon which preced.